Citation Nr: 1705515
Decision Date: 02/23/17 Archive Date: 02/28/17
DOCKET NO. 11-15 925 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for tension headaches and post concussion headaches.
2. Entitlement to service connection for traumatic brain injury (TBI) residuals other than headaches.
3. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Military Order of the Purple Heart of the U.S.A.
ATTORNEY FOR THE BOARD
B. Elwood, Counsel
INTRODUCTION
The Veteran served on active duty from September 1995 to September 1996, from October 2001 to May 2002, and from March 2003 to August 2004. He received the Army Commendation Medal.
These matters come before the Board of Veterans' Appeals (Board) from June 2009 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In the June 2009 decision, the RO denied entitlement to a rating in excess of 30 percent for PTSD. In the May 2010 decision, the RO denied the Veteran's petition to reopen a claim of service connection for brain trauma as new and material evidence had not been submitted. The RO in St. Louis, Missouri currently has jurisdiction over the Veteran's claims.
In August 2013, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board granted the petition to reopen the claim of service connection for TBI residuals and remanded the underlying claim, as well as the claims for an increased rating for PTSD and for a TDIU, for further development.
Finally, in light of the Veteran's reported symptoms and contentions, to encompass all disorders that are reasonably raised by the record, and as the Board is granting service connection for headaches, the Board has recharacterized the claim of service connection for TBI residuals as a claim of service connection for TBI residuals other than headaches. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim).
The issue of entitlement to service connection for TBI residuals other than headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran has current tension headaches and post concussion headaches which had their onset in service.
2. The evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's PTSD more nearly approximates total occupational and social impairment.
3. As a total (100 percent) rating for PTSD is being awarded for the entire claim period based in part on a finding of total occupational impairment, leaving no part of the claim period where the schedular rating is less than total, the issue of entitlement to a TDIU is rendered moot for the entire claim period.
CONCLUSIONS OF LAW
1. The criteria for service connection for tension headaches and post concussion headaches are met. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2014); 38 C.F.R. § 3.303 (2016).
2. With reasonable doubt resolved in favor of the Veteran, the criteria for a 100 percent rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2016).
3. The question of whether the Veteran is entitled to a TDIU is rendered moot by the grant of a total (100 percent) rating for PTSD during the entire claim period, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
As the Board is granting the claim of service connection for headaches and is granting the highest rating possible for PTSD for the entire claim period, the claims are substantiated and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).
I. Service Connection
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).
Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In this case, an August 2015 VA primary care progress note and an August 2015 VA general medicine note include diagnoses of post concussion headaches and tension headaches. Thus, a current headache disability has been demonstrated.
There is also evidence of headaches in service and evidence of continuous headaches in the years since service which indicates that this disability was incurred in service.
The Veteran contends that he began to experience headaches in service after being exposed to an enemy attack in Iraq during his last period of service from March 2003 to August 2004. Specifically, he has reported that he was driving in a military vehicle when an enemy rocket propelled grenade (RPG) hit his vehicle and two others exploded in close proximity to the vehicle. He began to experience headaches following this incident and they have continued in the years since that time. The Veteran's "Certificate of Release of Discharge from Active Duty" form (DD Form 214) for his period of service from March 2003 to August 2004 indicates that he served in Iraq from June 2003 to July 2004. In light of this and other evidence of record, the RO conceded by way of an April 2006 rating decision, and the Board agrees, that there is sufficient evidence of participation in combat/exposure to incoming enemy fire in service.
Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154 (b).
The Veteran is competent to report exposure to blasts from RPGs in service. His reports of such exposures in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Iraq. There is no clear and convincing evidence to the contrary. Moreover, service treatment records include an October 2003 record of treatment for a headache, among other symptoms. Also, the Veteran reported on a June 2004 "Post Deployment Health Assessment" form completed prior to his departure from Iraq that he experienced headaches during his deployment. Hence, exposure to RPG blasts in service and the presence of headaches in service is established.
A September 2005 "Health Questionnaire for Dental Treatment" form (DA Form 5570), the reports of VA brain and spinal cord/TBI examinations dated in February 2008, February 2010, and August 2015, and medical records dated from December 2006 to September 2015 document the Veteran's reports of continuous headaches in the years since service. The headaches occurred on a daily basis and were located at the base of the skull and on the sides and top of the head. Diagnoses of post concussion headaches and tension headaches were provided.
The Veteran is competent to report headaches in service as a well as a continuity of symptomatology in the years since service. His reports are consistent with the evidence of record. Thus, the Board finds that the reports of a continuity of headache symptomatology in the years since service are credible.
In sum, the weight of the evidence reflects that the Veteran experienced headaches in service, that he has been diagnosed as having current tension headaches and post concussion headaches, and that there have been continuous headaches in the years since service. There are no specific medical opinions contrary to a conclusion that the current headaches are related to service. Hence, the weight of the evidence indicates that the current tension headaches and post concussion headaches had their onset in service.
In light of the above evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for the currently diagnosed tension headaches and post concussion headaches have been met. Hence, service connection for this disability is warranted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303.
II. Increased Rating
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.
The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. §§ 4.125, 4.130.
The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. This disability is rated according to the General Rating Formula for Mental Disorders.
Under the General Rating Formula, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411.
A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id.
A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004);
Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).
The Board has considered the Global Assessment of Functioning (GAF) scores assigned during the claim period. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).
GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. Further, GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and has some meaningful interpersonal relationships. Id.
However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a).
In the present case, VA treatment records dated from November 2008 to January 2009 reflect that the Veteran reported that he was concerned with his ability to use appropriate force if needed in dealing with offenders as part of his probation and parole job. He was worried that if he needed to act with force he may not be able to maintain full professional control of his actions. As a result, he quit his job to relieve the stress and to focus on his family.
Examinations revealed that the Veteran was mildly anxious and that his sleep was fair. His mood/affect was normal, he was fully alert and oriented, he had good concentration, and there were no delusions, hallucinations, or suicidal/aggressive tendencies. Diagnoses of PTSD, depression, and attention deficit hyperactivity disorder (ADHD) were provided and a GAF score of 55 was assigned, indicative of moderate impairment.
A March 2009 examination report from Saint Francis Medical Center indicates that the Veteran retained the ability to understand and remember simple instructions and to sustain concentration and persistence with simple tasks, but that he reported that his memory problems interfered with his job performance and that he had been taken off duty due to a combination of emotional, cognitive, and physical difficulties. He had been unemployed since December 2008 and was in school with a major in "CAD design." He was married with two children, but avoided family events due to tension and hypervigilance. He also reported that he experienced impaired short-term memory, nightmares, anxiety, intrusive thoughts, avoidance, problems with anger control, depression, and irritability.
Examination revealed that the Veteran was appropriately dressed and groomed. He exhibited evidence of hypervigilance and there was evidence of blunted affect throughout the examination. His mood was anxious/angry/depressed. His speech, thought process, and thought content were all normal, there were no perceptual disturbances, he was fully alert and oriented, and judgment and insight were intact.
The Veteran reported during an April 2009 VA examination that he experienced worsening depression, occasional nightmares (which were controlled with medication) and flashbacks, feelings of detachment and emotional numbing, increased irritability, a feeling of being "stressed and overwhelmed," impaired concentration, and a history of impulsive behavior. He avoided thinking or talking about his experiences in Iraq. He resigned from his job because he was making poor decisions (i.e., he pepper sprayed a cat), forgetting meetings, losing focus, neglecting details, and experiencing an inability to concentrate. His boss required him to follow certain criteria (i.e., increase his attention to detail, focus, attend meetings, and remember to complete tasks), but the Veteran acknowledged that he would not be able to follow through with the contract and he quit. He was attending technical school at the time of the April 2009 examination, with a goal of obtaining his computer arts degree. Furthermore, the Veteran was married in 2001 for approximately 1 year, but the relationship ended because his wife was unfaithful and left. He re-married in December 2006 and he and his second wife had two children, but there was "marital discord."
The psychologist who conducted the April 2009 examination indicated that such symptomatology was consistent with ADHD and that it could "not be said with any degree of certainty that the [V]eteran's PTSD [was] responsible for difficulty maintaining gainful employment." Rather, his occupational difficulties appeared to be likely ("more likely than not") related to non service-connected ADHD. There was no specific explanation or rationale provided for this opinion.
The Veteran was assessed using the Mississippi Scale for Combat Related PTSD and obtained a score which appeared valid and suggested a slight increase in PTSD symptomatology. The Beck Depression Inventory-II and Beck Anxiety Index were also administered and indicated a severe level of symptoms with a slight increase in depressive symptomatology and a severe level of anxiety. Overall, the testing suggested a worsening of symptoms across the board. Further examination revealed that the Veteran was neatly groomed, appropriately dressed, and cooperative. His mood was mildly depressed and anxious and his affect was congruent and of restricted range. He was fully alert and oriented, there were no fine or gross motor impairments, thought processes were clear and goal directed, there was no evidence of perceptual disturbance, and speech was articulate, clear, and within normal limits for volume, rate, and rhythm. Immediate memory tasks were performed without error, but the Veteran was able to recall only two of three items in intermediate and delayed memory tasks. Tests of mental control were poor, consistent with ADHD. Attention, concentration, and verbal abstract reasoning skills were fair. Impulse control was within normal limits and insight and judgment were intact.
Diagnoses of moderate chronic PTSD and ADHD "by history" were provided and a GAF score of 56 was assigned, indicative of moderate impairment. The examiner noted that many of the Veteran's symptoms (i.e., impulsivity, poor judgment, lack of focus, poor concentration, poor task persistence) were consistent with his existing diagnosis of ADHD. His symptoms of ADHD appeared to have more of a negative impact on his occupational functioning than his PTSD.
Medical records dated from April to December 2009 reflect that the Veteran experienced poor sleep, nightmares, night sweats, forgetfulness, memory problems, a feeling of being overwhelmed, panic attacks (manifested by intense anxiety, dizziness, sweating, and heart palpitations 4 to 5 times each day), flashbacks, emotional numbing, anxiety, and social isolation. He was doing well at school and felt less stressed after quitting his job. He secured new employment with VA during this period and did not feel that his job was stressful.
Examinations revealed that the Veteran was neatly dressed and groomed, had normal eye contact, and was fully alert and oriented. His motor activity was somewhat slowed, his mood was anxious/down, his affect was flat, his speech was slow and monotone, and he experienced problems with word-finding and mild thought blocking. Also, his concentration and immediate recall were impaired. There were no suicidal/aggressive tendencies or obsessive/compulsive behaviors and the Veteran's insight and judgment were good. He was diagnosed as having PTSD, recurrent major depression with psychotic features, and a history of ADHD and a GAF score of 58 was assigned, indicative of moderate impairment.
In December 2009, a physician completed an "Ability to do Work-Related Activities" form and reported that the Veteran had only a fair ability to remember work-like procedures, maintain regular attendance and be punctual within customary and usually strict tolerances, perform at a consistent pace without an unreasonable number and length of rest periods, ask simple questions or request assistance, respond appropriately to changes in a routine work setting, set realistic goals or make plans independently of others, maintain socially appropriate behavior, and travel in unfamiliar places. He had poor or no mental ability to maintain attention for a two hour segment, work in coordination with or proximity to others without being unduly distracted, complete a normal workday and workweek without interruptions from psychologically based symptoms, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes, deal with normal work stress, understand and remember detailed instructions, carry out detailed instructions, deal with stress of semiskilled and skilled work, interact appropriately with the general public, and use public transportation. These job limitations were caused by various psychiatric symptoms, including increased anxiety, decreased concentration, hypervigilance, a hyperstartle response, flashbacks, anger, irritability, guardedness, and paranoia. Overall, the Veteran's psychiatric impairments would cause him to be absent from work anywhere from two days per month to more than four days per month.
In a January 2010 statement, the Veteran's wife reported that the Veteran experienced frequent mood swings and memory loss/forgetfulness. While at work one day he had experienced a severe flashback that affected his ability to perform his job and resulted in treatment at the emergency room for chest pain, dizziness, and shortness of breath.
VA treatment records dated from January to February 2010 indicate that the Veteran reported that he experienced increased anxiety, poor concentration, forgetfulness, difficulty making decisions, slowed thinking/difficulty getting organized/inability to finish things, decreased energy, impaired sleep, disturbing dreams of stressful experiences, anxiety, depression, irritability, anger, hypervigilance, a hyperstartle response, mood swings, loss of interest in activities, emotional numbness, a sense of a foreshortened future, social isolation, and occasional suicidal ideation. He worked as a corrections officer/patrol officer until December 2008, at which time he resigned because he made "poor decisions" and forgot about meetings and required tasks. He was enrolled in school as a half time student studying drafting and remained married to his second wife. Examinations revealed that the Veteran's affect was slightly restricted/flat and that his mood was subdued/depressed/anxious. His speech was fluent and intelligible, but somewhat slowed. The Veteran was diagnosed as having PTSD, depression, and anxiety not otherwise specified (NOS).
The reports of March 2010 VA psychiatric and TBI examinations reveal that the Veteran reported that after leaving his job in December 2008 he worked for "a couple months" at VA, but that he could not tolerate the work and was having flashbacks at work because he experienced flashbacks when under stress. He was unemployed at the time of the March 2010 examinations. He experienced impaired sleep, anxiety, mood swings, impulsivity, poor judgment, lack of focus, poor concentration, and poor task persistence.
Examinations revealed that the Veteran was casually and appropriately dressed with adequate hygiene. He was cooperative during the examinations and there were no fine or gross motor abnormalities noted. His conversational speech was variable in that it was sometimes fluent, free of paraphasic errors, and of normal rate and volume, but was also sometimes slow, slurred, and with a mild stutter. Thought content was appropriate, there was no evidence of delusions, ideas of reference, or loose associations, no inappropriate behavior was observed or reported, and the Veteran did not experience any suicidal or homicidal ideation. He was capable of maintaining minimal personal hygiene and completing activities of daily living. He was fully alert and oriented, but his memory was impaired and his affect was flat.
The examiner who conducted the March 2010 psychiatric examination concluded that many of the Veteran's symptoms (impulsivity, poor judgment, lack of focus, poor concentration, poor tasks persistence) were consistent with his existing diagnosis of ADHD. His symptoms of ADHD appeared to have more of a negative impact on his occupational functioning than his PTSD. There was no specific explanation or rationale for these conclusions. A diagnosis of PTSD was provided and a GAF score of 56 was assigned, indicative of moderate impairment.
VA treatment records dated from April 2010 to May 2012, the Veteran's May 2010 notice of disagreement (VA Form 21-4138), his May 2011 substantive appeal (VA Form 9), and statements from the Veteran dated in March and June 2012 indicate that he experienced violent outbursts of anger when provoked, irritability, anxiety, depression, hypervigilance, a hyperstartle response, total social isolation, emotional numbness, a sense of a foreshortened future, lack of enjoyment in recreational activities, avoidance of activities, flashbacks, nightmares, forgetfulness, impaired memory, lack of concentration and focus, decreased energy, and occasional suicidal/homicidal thoughts. He had not worked since 2008 (with the exception of a brief attempt to return to work which only lasted a couple of months) and was unable to keep a job due to his psychiatric symptoms. He went to school to study architecture, but his program was interrupted by the VA Vocational Rehabilitation program. He was experiencing marital difficulties because he had issues with trust and intimacy, did not feel close with his wife, and had problems communicating with his wife. As a result, he and his wife engaged in marital counseling with VA.
Examinations revealed that the Veteran was casually dressed and neatly groomed, had good eye contact, and was fully alert and oriented. His speech and motor function were somewhat slowed, his mood was euthymic/anxious, and his affect was congruent with mood/flat/restricted. The Veteran was diagnosed as having PTSD and major depressive disorder and GAF score of 58 to 65 were assigned, indicative of moderate to mild impairment.
The report of an August 2012 VA field examination indicates that the Veteran was fully oriented and was able to hold a normal conversation. He lived alone, but occasionally had custody of his children. He went to the gym three times a week, volunteered at a VA medical center doing music therapy, and enjoying playing guitar, watching television, and spending time with his children. He had been a participant in the VA Vocational Rehabilitation program, but "[d]ue to his mental health conditions he was unable to continue in the program and was found to be infeasible of being employed." The field examiner spoke with a VA Vocational Rehabilitation counselor and confirmed that the Veteran's case was being terminated because he was "infeasible of gaining employment."
The Veteran reported during an April 2013 VA psychiatric examination that he experienced depression, anxiety, nightmares, avoidance of thoughts/conversations, loss of interest/motivation in activities, a feeling of being distant and cut off from others, irritability, impaired sleep, intrusive thoughts, low energy, poor self-worth, impaired memory and concentration, hypervigilance, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a worklike setting), and intermittent suicidal and homicidal ideation. He lived alone with his two sons (with whom he had good relationships) and was in the process of divorcing his wife because they were unable to connect due to the Veteran's emotional isolation. He sometimes saw a woman on the weekends, but there was not much closeness between them and the Veteran had a hard time developing a relationship. He did not spend time with anyone else outside of his family. He occasionally visited his mother and went to exercise at a small gym once a day, but he otherwise did not leave the house much because he would get agitated and irritable when he was out for any length of time due to his anxiety and hypervigilance. He occasionally experienced physical symptoms of anxiety, including increased heart rate, sweating, and heavy breathing. Also, he experienced stress and worsening psychiatric symptoms anytime he tried to become involved in an activity that required him to have a level of responsibility or where there were expectations as to his performance.
As for employment, the Veteran resigned from his job as a parole officer in 2008 due to problems caused by his psychiatric disability. He attempted to work for VA in 2009, but this job only lasted a couple of months due to the fact that it caused stress, that he experienced intrusive memories while working, and that he did not like to be around other people or to be held to expectations. He had not worked since his short period of employment with VA and was in receipt of Social Security Administration (SSA) disability benefits (his SSA disability records confirm that he was awarded SSA disability benefits on the basis of obesity and other hyperalimentation and anxiety related disorders).
With respect to the Veteran's reports of impulsivity and poor decision-making (symptoms which were not explained by the diagnoses of PTSD and major depressive disorder), the Veteran explained that he was diagnosed as having ADHD by VA, but that there was no pre-military history of this diagnosis. He was prescribed Ritalin in the past, but he discontinued the medication because it caused heart arrhythmia. Diagnoses of PTSD and major depressive disorder were provided and a GAF score of 56 was assigned, indicative of moderate impairment. The clinical psychologist who conducted the April 2013 examination indicated that while it was possible to determine which symptoms were related to each diagnosis, the differential impact of each diagnosis on the Veteran's functioning could not be determined without resorting to mere speculation. All of the Veteran's symptoms negatively impacted his functioning and it was impossible "to pull apart what portions of functional impairment [were] due to each symptom." Also, his two psychiatric diagnoses were interconnected and the functional impairment caused by PTSD symptoms exacerbated his depressive symptoms.
Moreover, the examiner concluded that the Veteran's mental health symptoms were moderate in severity and resulted in moderate functional impairment. The Veteran reported very little social interaction, but he did maintain some meaningful interpersonal relationships. He engaged in several enjoyable activities and utilized these activities in order to manage his stress level. The impact of his symptoms on his occupational functioning was moderate. He reported that he was able to carry out his job duties in his previous positions, but his reliability and productivity sometimes suffered as a result of his psychiatric symptoms. He did not wish to return to work because the added stress of responsibility that a job entails typically led to an increase in his psychiatric symptoms (particularly irritability and edginess). Nevertheless, the examiner opined that the Veteran's psychiatric symptoms did not render him unable to secure or maintain gainful employment. Rather, the Veteran chose to leave his last two jobs because of the discomfort he felt when confronted with occupational responsibilities. Overall, his psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity (i.e., the criteria for a 50 percent rating under DC 9411).
VA treatment records dated from June 2013 to August 2015 reflect that the Veteran reported that he experienced impaired memory, irritability, anxiety, depression, intrusive thoughts, and flashbacks. He was unemployed, lived with his two children, and occasionally participated in cross fit training with other veterans. He generally had difficulty in public places.
Examination revealed that the Veteran was appropriately dressed, had good hygiene, maintained good eye contact, and was fully alert and oriented. His mood was euthymic, his affect was variable and appropriate, he exhibited some word finding difficulties, thought content was normal, his short-term memory was 3/5, and insight and judgment were good. He was diagnosed as having PTSD, anxiety disorder NOS, mood disorder NOS, dysthymia, and depression and a GAF score of 60 was assigned, indicative of moderate impairment.
A September 2015 VA psychiatric examination report reflects that the Veteran's divorce was finalized in 2013 and that he had primary custody of his children. He had resumed a relationship with a former girlfriend, but he struggled to keep relationships together and his relationships were "rough." He had daily contact with his parents (who helped with the children) and frequently saw his brother. He was employed with VA in 2010, but this job only lasted one month due to increasing psychiatric symptoms and he had not been employed since that time. He exercised at a gym for approximately an hour each day, but he otherwise spent his time alone at home and at his parents' house in the evenings. His recreational activities included drawing, playing guitar, and exercising. Moreover, he reported that he experienced lack of motivation, depression, anxiety, hypervigilance, irritability, impaired sleep, occasional suicidal ideation, and impaired thinking.
Examination revealed that the Veteran was casually and appropriately dressed, that he maintained good eye contact, and that he responded appropriately throughout the examination. There were no obvious difficulties with speech, concentration, orientation, or fund of knowledge. Psychological testing was performed, but it was invalidated by overreporting. The clinical psychologist who conducted the examination explained that individuals who exhibit this pattern are attempting to portray themselves as functioning worse than an objective appraisal would indicate. This occurs when someone attempts to exaggerate or feign symptoms, but it may also occur when an individual genuinely believes they have symptoms that are not based on objective medical reality (e.g., somatoform disorders). Such individuals may have true psychological disorders, but given their pattern of overreporting in the context of compensation-seeking, their self-report of symptoms is not considered credible. Therefore, based on a review of records, an interview with the Veteran, and the results of psychological testing, the examiner was unable to support a diagnosis of PTSD, or other psychiatric diagnosis, incurred in or aggravated by military service. Also, the examiner was unable to comment on the Veteran's ability to function in an occupational environment in regard to his service-connected disabilities given the examiner's inability to ascertain a psychiatric disorder in the context of invalid psychological testing.
Initially, the Board notes that the Veteran has been diagnosed as having non service-connected psychiatric disabilities other than PTSD during the claim period, including depression, ADHD, anxiety NOS, mood disorder NOS, and dysthymia. However, where an examiner is unable to distinguish the symptoms of a service-connected disability from non-service connected manifestations, all the manifestations will be considered part of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)).
In this case, there is no evidence to clearly distinguish the symptoms of the Veteran's service-connected PTSD from the majority of his other diagnosed non service-connected psychiatric disabilities. Moreover, the examiner who conducted the April 2013 VA examination concluded that it was not possible to distinguish the functional impacts caused by the Veteran's PTSD symptoms from those caused by his diagnosed depression. Although several medical professionals have indicated that some of the Veteran's symptoms (e.g., lack of focus and concentration, disorganization, and impulsivity) are associated with his diagnosed ADHD as opposed to his PTSD, the Board nevertheless finds that the majority of the Veteran's psychiatric symptoms cannot be explicitly attributed to a specific psychiatric diagnosis. Thus, the Board will attribute all of the Veteran's psychiatric symptoms to PTSD for the purposes of assessing the severity of that disability. Id.
The above evidence reflects that during the entire claim period the Veteran has been continuously unemployed and that he is unable to function socially. He stopped working in December 2008 due to problems associated with his psychiatric disability and the only other reported employment during the claim period lasted for between one and two months and ended due to increasing psychiatric symptoms.
Despite the fact that examiners have predominantly indicated that the Veteran's psychiatric disability is no more than moderately disabling and the fact that the GAF scores assigned generally reflect moderate impairment, the Veteran has nonetheless remained unemployed for the vast majority of the claim period, he has attributed his employment problems to his psychiatric symptoms, his participation in the VA Vocational Rehabilitation program was ended due to the fact that he was found to be infeasible of gaining employment due to his psychiatric symptoms, and he was awarded SSA disability benefits on the basis of a psychiatric disability (among other disabilities). Moreover, the question of the rating warranted by the symptoms and impairment caused by the Veteran's PTSD is a legal and not a medical one. 38 C.F.R. § 3.100(a) (2016) (delegating the Secretary's authority "to make findings and decisions ... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present."); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity").
As for his social functioning, the Veteran's second marriage ended due, at least in part, to symptoms associated with his psychiatric disability. He maintains relationships with his children and parents and attends the gym with other veterans, but he is otherwise socially isolated and generally does not engage in any social activities due to his psychiatric symptoms.
The evidence is thus at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's PTSD more nearly approximates total occupational and social impairment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an increased 100 percent rating is warranted for the entire claim period. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
III. TDIU
A TDIU may be assigned "where the schedular rating is less than total" and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).
The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a).
As the Board is granting a 100 percent rating for PTSD for the entire claim period, there remains no time during the claim period where the schedular rating is "less than total," as required for a TDIU. See 38 C.F.R. § 4.16 (a). For this reason, the issue of entitlement to a TDIU at any time during the claim period is now rendered moot. The question of whether the Veteran is entitled to an award of a TDIU is rendered moot by the grant of a 100 percent schedular ("total") rating for PTSD, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16.
The Veteran's primary contention during the claim period has been that he is unable to work due to his service-connected PTSD, and the 100 percent rating which is being granted throughout the entire claim period specifically contemplates total unemployability (i.e., total occupational impairment) due to PTSD. Aside from PTSD (now rated at 100 percent during the entire claim period), service connection is in effect for tinnitus, rated 10 percent disabling. The Board is also granting service connection for tension headaches and post concussion headaches. The Veteran has not contended, and the evidence does not otherwise show, that either tinnitus or headaches, alone or in combination, are of such a severity so as to preclude all substantially gainful employment.
The facts presented in this case are distinguishable from those in Bradley v. Peake,
22 Vet. App. 280 (2008), because in this case the Veteran does not contend, and the evidence does not show, that any service-connected disability or disabilities other than the disability for which a 100 percent rating is being assigned (i.e., PTSD) render the Veteran unemployable. Under the facts presented in that case, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. If the Veteran were to be awarded a TDIU ("total" rating) based on service-connected PTSD rendering him unemployable for any time during the rating period, it would
impermissibly result in the same disability being "counted twice" in the assignment of a total rating, as it would be rating the "total occupational impairment" twice. See generally 38 C.F.R. § 4.14. In consideration thereof, the Board finds that the issue of entitlement to a TDIU must be dismissed as moot.
ORDER
Entitlement to service connection for tension headaches and post concussion headaches is granted.
Entitlement to a 100 percent rating for PTSD is granted, subject to controlling regulations governing the payment of monetary awards.
The appeal, as to the issue of entitlement to a TDIU, is dismissed.
REMAND
The Veteran contends that he began to experience various non-psychiatric/non-cognitive symptoms after being exposed to an enemy attack in Iraq during his last period of service from March 2003 to August 2004. Specifically, he reported that he was driving in a military vehicle when an enemy RPG hit his vehicle and two others exploded in close proximity to the vehicle. He began to experience vision problems and dizziness/balance problems/vertigo following this incident and they have continued in the years since that time.
In its August 2013 remand, the Board instructed the AOJ to afford the Veteran appropriate VA examination(s) to evaluate the etiology of his claimed TBI-related symptoms (including non-psychological symptoms). A VA examination was subsequently conducted in August 2015 and the physician who conducted the examination indicated that he was unable to conclude that the etiology of the Veteran's claimed TBI-related complaints (including vision problems, clumsiness, and dizzy spells) were due to a TBI sustained during service without resort to mere speculation. He explained, in pertinent part, that there was no convincing evidence in the available medical records that the Veteran sustained a TBI in service. Rather, there was an abundance of clinical evidence that he had a large number of complaints that were either directly or indirectly related to his service-connected PTSD. The examiner did not specifically identify any distinct disabilities associated with the Veteran's claimed vision problems and dizziness/balance problems/vertigo.
The August 2015 opinion is adequate to the extent that it is accompanied by a specific rationale addressing why a definitive conclusion as to etiology of the Veteran's claimed symptoms could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Moreover, the examiner did not specifically address whether the Veteran's claimed vision problems and dizziness/balance problems/vertigo are attributable to identifiable diagnoses and he did not acknowledge or comment on the fact that the Veteran has reported that such symptoms have persisted ever since his exposure to the RPG explosions in service. Thus, a remand is necessary to obtain a new opinion as to the nature and etiology of any current disability(ies) manifested by vision problems and dizziness/balance problems/vertigo.
Updated VA treatment records should also be secured upon remand.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the file all updated records of the Veteran's treatment contained in the St. Louis Vista electronic records system and dated from August 2015 through the present; and all such relevant records from any other sufficiently identified VA facility.
All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e).
2. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, ask the examiner who conducted the August 2015 VA TBI examination to review all relevant electronic records contained in the VBMS and Virtual VA systems (including a copy of this remand along with any records obtained pursuant to this remand) and provide an opinion as to the nature and etiology of any current disability(ies) manifested by vision problems and dizziness/balance problems/vertigo.
If the individual who conducted the August 2015 VA TBI examination is no longer employed by VA or is otherwise unavailable, document that fact in the file, and arrange to obtain a medical opinion from another appropriate physician based on claims file review. Only arrange for the Veteran to undergo further examination(s) by an appropriate physician if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion.
The opinion provider should identify all disability(ies) that are manifested by vision problems and dizziness/balance problems/vertigo that have been diagnosed since approximately February 2010.
The opinion provider should also answer the following questions:
(a) Is it at least as likely as not (50 percent probability or more) that any current disability manifested by vision problems had its onset during any period of active duty service, is related to the Veteran's exposure to exploding RPGs in service, or is otherwise the result of a disease or injury in service?
(b) Is it at least as likely as not (50 percent probability or more) that any current disability manifested by dizziness/balance problems/vertigo had its onset during any period of active duty service, had its onset during the year immediately following any period of active duty service (in the case of any currently diagnosed organic disease of the nervous system), is related to the Veteran's exposure to exploding RPGs in service, or is otherwise the result of a disease or injury in service?
In formulating the above opinions, the opinion provider should specifically acknowledge and comment on any disability(ies) manifested by vision problems and dizziness/balance problems/vertigo that have been diagnosed since approximately February 2010, the Veteran's conceded exposure to exploding RPGs in service, and his reports of vision problems and dizziness/balance problems/vertigo in the years since service. For purposes of the above opinions, the opinion provider shall presume that the Veteran's reports of vision problems and dizziness/balance problems/vertigo in service following his conceded exposure to exploding RPGs are accurate.
The opinion provider must provide reasons for each opinion given.
The opinion provider is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran (including his reports of a continuity of symptomatology in the years since service) must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for specific vision problems or dizziness/balance problems/vertigo in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.
3. If a benefit sought on appeal remains denied, the AOJ should issue an appropriate supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs